XVII. Torts: Nuisance
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Nuisances are types of harm -- the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability.
As a practical matter, nuisances are generally intentional interferences because defendant has been made aware.
A substantial, unreasonable interference with another private individual's use or enjoyment of property he actually possesses or to which he has a right of immediate possession.
Substantial: must be offensive, inconvenient, or annoying to an average person in the community; will not be considered substantial if it's merely the result of plaintiff's hypersensitivity or specialized use of his property.
Unreasonable: for nuisance based on intent or negligence, the interference must be unreasonable; to be characterized as unreasonable, the severity of the inflicted injury must outweigh the utility of defendant's conduct; courts take into consideration that everyone is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of an alternative courses of conduct open to defendant.
an act that unreasonably interferes with the health, safety, or rights of the community
Recovery is available for public nuisance only if a private party has suffered some unique damage not suffered by the public at large.
INJUNCTIVE RELIEF FOR NUISANCE
Where the legal remedy of damages is unavialable or inadequate, injunctive relief may be granted. Courts will take into consideration the relative hardship the granting of injunction will cause the parties, but will not consider hardship to a defendant who is acting willfully.
ABATEMENT BY SELF-HELP
For private nuisance: plaintiff may enter upon defendant's land and personally abate the nuisance after notice and defendant's refusal to act. Force used may only be that necessary to accomplish the abatement and plaintiff is liable for any additional harm done.
For public nuisance: plaintiff may only act if he has suffered some unique injury
DEFENSES TO NUISANCE
legislative authority: conduct consistent with zoning relevant but not conclusive
conduct of others: ie, other people producing same nuisance
contributory negligence: if tort is based on negligence, plaintiff may have to prove that he is not contributing
coming to the nuisance: plaintiff assumed the risk -- purchaser is entitled to reasonable use or enjoyment of his land to the same extent as any other owner as long as he buys in good faith and not for the sole purpose of a harassing lawsuit.
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